Many of you will likely remember that shortly after the Super Bowl there was a bit of a thing here on Shapeways in connection with a model of Left Shark. To briefly review and condense the timeline: person awkwardly dancing inside shark costume during the halftime show rockets to internet fame. Designer Fernando Sosa creates 3D model of the newly christened “Left Shark” and starts selling it on Shapeways. Katy Perry’s lawyers send Shapeways a nastygram asserting rights in Left Shark. Fernando Sosa responds, questioning if Katy Perry has any rights in Left Shark at all. Left Shark makes its triumphant return to Shapeways. (In a B story that foreshadows today’s news, Katy Perry then uses Sosa’s Left Shark as part of her trademark application).
Today the Left Shark IP story that never ends added a new chapter. As was widely reported, Katy Perry’s application to register the Left Shark costume as a trademark was denied by the United States Patent and Trademark Office (PTO). What does this actually mean?
As attorney Mark H. Jaffe (who has been all over the trademark angle of this story on twitter) reminded us this morning, this refusal by the PTO is an initial refusal. That means that Katy Perry still has an opportunity to respond, and to modify her application in order to improve its chances of being approved.
Another thing to keep in mind is that trademark is different from copyright. Trademark is all about helping consumers match a service to a service provider. That means that a big part of getting a trademark is showing that people use it to identify your services or goods, and to distinguish them from other services or goods in the marketplace.
Enough with the background – what actually happened?
Katy Perry (well, Katy Perry’s company Killer Queen LLC) applied to use the Left Shark costume as a trademark to identify Katy Perry-related goods and services in the marketplace. In refusing the application, the examiner essentially found that Left Shark does not identify Katy Perry’s “musical or dance performances” in the marketplace. Essentially, the examiner found that Left Shark represents Left Shark and not Katy Perry to consumers. When people see Left Shark figurines, or Left Shark on cell phone covers, mugs, and sweatshirts, they don’t think “Katy Perry.” They think “Left Shark.”
Now Katy Perry has some time to respond to the PTO for both the costume registration and the words “Left Shark.” Until she does, and until the PTO accepts the marks, Katy Perry does not have a trademark in Left Shark.
Surely the legal machinations surrounding Left Shark will outlast the half-life of Left Shark’s fame by a few orders of magnitude. So keep your eyes on the Shapeways blog for all of the latest news.